Can There Be An “Undeclared” Canon of Statutory Interpretation?

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed. Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter. And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism.

In my view, the basic thread connecting all of these paths to canonical status is established convention. Whether their authority derives from pedigree, frequent use, constitutional authority, or precedential weight, the interpretive canons are treated as such because they are believed to reflect rules or norms with which legislators are familiar. The “canons” are given special status, rather than treated as ordinary legal argument styles or logical inferences, because they (are believed to) reflect the background understandings against which legislators draft statutory language and against which judges, lawyers, and those affected by a statute are meant to read that language.

By this reasoning, the Court need not label an interpretive methodology a “canon” of statutory interpretation for it to be considered such. Indeed, the Supreme Court routinely relies on well-known canons such as the “dog that didn’t bark” canon, the expressio unius maxim, and the whole act rule without identifying the canon on which it is relying, or even indicating that the argument it is making is based on an established canon of construction. See, e.g., Scheidler v. N.O.W., 547 U.S. 9, 20 (2006) (dog that didn’t bark); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Ed., 550 U.S. 81, 88 (2007) (dog that didn’t bark); Rowe v. New Hampshire Motor Transport Ass’n, 128 S.Ct. 989, 997 (2008) (expressio unius); Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006) (expressio unius); LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S.Ct. 1020, 1025-26 (2008) (whole act rule); Hinck v. United States, 550 U.S. 501, 506 (2007) (whole act rule). Thus, I submit that the nature and extent of the Supreme Court’s reliance on particular interpretive methodologies—rather than its act of giving a label to the methodology it is using—should drive our analysis of whether an interpretive methodology rises to the level of an established rule or canon of statutory construction.

2 Responses

Canons are useful as reminders of possible interpretive methods, but they should never be routinely followed. Always remember Karl Llewellyn and his warning on counter-canons in 4 Vanderbilt.

I used to teach that the baseball antitrust exemption was based on the old Chevvy commercial–“baseball, apple pie, and Chevrolet–but the lower cts have been whittling away at that. At best, baseball is now a canon lite.

Presumably you are referring not to a “unique canon about national institutions,” but rather to a “canon about unique national institutions.” You should therefore probably write: “unique-national-institution canon.”